1
Deshawn Lynn Randolph, Petitioner: v. The People of the State of Colorado, Respondent:
No. 23SC167
Supreme Court of Colorado, En Banc
June 23, 2025
Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 20CA174
Attorneys for Petitioner:
Megan A. Ring, Public Defender Andrea R. Gammell, Deputy Public Defender Denver, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General Katharine Gillespie, Senior Assistant Attorney General Denver, Colorado
JUSTICE SAMOUR delivered the Opinion of the Court, in which CHIEF JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE HART, and JUSTICE BERKENKOTTER joined.
OPINION
SAMOUR, JUSTICE
¶1 Section 18-7-402, C.R.S. (2024), the statute proscribing
soliciting for child prostitution, takes center stage before
us yet again today. It was just four years ago that we were
confronted with it in People v. Ross,
¶2
But alas, we ultimately declined to address the culpable
mental state question in Ross II because the answer
didn't impact the outcome of the prosecution's
appeal. Id. at ¶ 26,
¶3
Although we haven't spoken on the issue before, we do not
stand on fallow ground. The court of appeals has wrestled
with the applicable culpable mental state in section
18-7-402(1) on a couple of occasions. The first time was in a
case that reigned supreme in Colorado for almost three
decades. See People v. Emerterio,
¶4 At long last, the time has come to settle the dust. We now hold that the culpable mental state of soliciting for child prostitution under subsections (1)(a) and (1)(b) is knowingly (the same culpable mental state expressly designated in section 18-7-402(1)(c) ("subsection (1)(c)")).[2] Because the division below also landed in the knowingly camp, we affirm its judgment.
¶5 As pertinent here, Randolph was charged with two counts of soliciting for child prostitution, in violation of subsections (1)(a) and (1)(b). The former proscribes soliciting another "for the purpose of prostitution" of or by a child, and the latter proscribes arranging (or offering to arrange) a meeting of persons "for the purpose of prostitution" of or by a child. § 18-7-402(1)(a)-(b) (emphases added).
¶6 The charges arose from a series of exchanges Randolph had with an investigator from the Arapahoe County Sheriff's Office who had created a fake profile by the name of "Nicole" on a social networking platform that's often used to recruit girls into a life of prostitution. Randolph offered to arrange sex work for Nicole even though she had told him she was just shy of her eighteenth birthday.
¶7 At trial, Randolph's theory of defense was that he never actually intended to arrange sex work for Nicole; instead, he asserted that his promises of obtaining sex work for her were nothing but bravado and bluster, meant to string her along until she turned eighteen, at which point he would attempt to have sex with her. Although Randolph acknowledged that such conduct might be morally reprehensible, he argued that it didn't amount to soliciting for child prostitution because it was not undertaken "for the purpose of" prostitution of or by a child.
¶8
Consistent with this theory, Randolph proposed a jury
instruction that defined the phrase "for the purpose
of" as "conduct performed with an anticipated
result that is intended or desired." In support of this
definition, he cited Colorado Ethics Watch v. City &
County of Broomfield,
¶9 The jury, therefore, was ultimately instructed as follows regarding the elements of the two soliciting charges:
(1) That Randolph,
(2) in the State of Colorado, at or about the date and place charged,
(3) knowingly, (4) solicited another[3] or arranged or offered to arrange a meeting of persons,[4]
(5) for the purpose of prostitution of a child or by a child.
The jury found Randolph guilty of both charges, and the district court sentenced him to two concurrent nine-year terms in the Department of Corrections.
¶10
Randolph appealed, arguing, as relevant here, that the
district court had improperly instructed the jury regarding
the mens rea of the soliciting charges. He maintained that
"for the purpose of" was the equivalent of
intentionally, and as such, the district court had mistakenly
refused to give the jury his proposed instruction. A division
of the court of appeals was unpersuaded and affirmed his
convictions. People v. Randolph,
¶11 Before turning to the merits of the parties' contentions, we consider the standard of review that governs our analysis.
¶12
The Colorado Constitution vests our General Assembly with the
"power to define criminal conduct and to establish the
legal components of criminal liability." Gorman v.
People,
¶13 We review de novo whether a jury instruction is an accurate
and clear recitation of the law. Riley v. People,
¶14
Our primary purpose when interpreting a statute is to
ascertain and give effect to the legislature's intent,
looking first to the plain and ordinary meaning of the words
used. Id. We must read a statute as a whole, aiming
to give consistent, harmonious, and sensible effect to all
its parts. Id. at ¶ 38,
¶15 If, based on our interpretation of the relevant statute, we determine that an instruction was a correct and clear statement of the law, we review the trial court's decision to give it to the jury for an abuse of discretion. Garcia, ¶ 18, 503 P.3d at 140. When we conclude that a jury instruction was provided in error and that the error was properly preserved, our reversal-determining standard is constitutional harmless error, which requires us to reverse unless the prosecution proves that the error was harmless beyond a reasonable doubt. Id.
¶16 We begin by setting forth the statute proscribing soliciting for child prostitution. Then, looking back in our rearview mirror, we review Colorado's jurisprudence addressing the applicable culpable mental state in subsections (1)(a) and (1)(b). Specifically, we dissect the conflicting decisions from the court of appeals in Emerterio and Ross I. On the heels of that discussion, we explore in some detail the road taken by the division in this case. We proceed to discern the legislature's intent and hold that, although subsections (1)(a) and (1)(b) do not explicitly provide a culpable mental state, the legislature meant for knowingly to be the culpable mental state in each of them. Applying that holding here, we conclude that the district court did not err in instructing the jury.
¶17 Section 18-7-402(1) sets out three methods of committing the crime of soliciting for child prostitution. The crime is committed when a person:
(a) Solicits another for the purpose of prostitution of a child or by a child; (b) Arranges or offers to arrange a meeting of persons for the purpose of prostitution of a child or by a child; or
(c) Directs another to a place knowing such direction is for the purpose of prostitution of a child or by a child.
§ 18-7-402(1). We focus on subsections (1)(a) and (1)(b) because, as relevant here, Randolph was charged only pursuant to those two subsections. But because we're duty bound to interpret section 18-7-402 as a whole and to give harmonious, consistent, and sensible effect to all its parts, we account for subsection (1)(c) in our analysis.
¶18
Thirty-four years ago, a division of the court of appeals
upheld a trial court's instruction informing the jury
that the applicable culpable mental state in subsection
(1)(a) is knowingly. Emerterio,
¶19
The division's decision in Emerterio remained
king of the hill in Colorado for many years. Then, in 2019, a
different division of the court of appeals threatened its
imperium. See Ross I, ¶ 44,
¶20
In clearing a different path, the Ross I division
noted that there appeared to be a new debate about
Emerterio's "application of the
'knowing' culpable mental state to the crime of
soliciting for child prostitution." ¶ 28, 482 P.3d
at 456. Continuing, the division stated that the Colorado
Supreme Court Model Criminal Jury Instructions Committee (the
"Committee") had done an about-face on its position
regarding the applicable culpable mental state in subsections
(1)(a) and (1)(b). Id. at ¶ 29,
¶21 The Ross I division was persuaded by comment 3. Like the Committee, it homed in on the phrase "for the purpose of." It then turned to the Model Penal Code's ("MPC") most culpable mental state, purposely, which it regarded as comparable to the Colorado Criminal Code's most culpable mental state, intentionally. Ross I, ¶¶ 32, 34-36, 482 P.3d at 457. Relying on a couple of dictionary definitions and case law from both Colorado and foreign jurisdictions, the Ross I division equated "for the purpose of" with intentionally and treated the two terms as interchangeable. Id. at ¶¶ 31-38, 482 P.3d at 456-58.
¶22 We granted the prosecution's petition for certiorari in
Ross II but ultimately declined to resolve the
division split, withholding judgment "on the soundness
of the division's conclusion that the phrase 'for the
purpose of' in subsections [(1)(a) and (1)(b)] describes
the culpable mental state of with intent." ¶ 6 n.2,
¶23
That brings us to the division in this case. It found itself
at a crossroads: In one direction was Emerterio; in
the other, Ross I.[6] The division was bound by
neither, so it had a choice to make. Campbell v.
People,
¶24
The Randolph division declined to fall in with
Ross I for a handful of reasons. First, although
acknowledging the Committee's change of heart between
1991, when Emerterio saw the light of day, and 2009,
when Ross I came into existence, it pointed out that
model jury instructions are not binding law. Id. at
¶ 22,
¶25
Second, the Randolph division rejected Ross
I's reliance on dictionary definitions instead of
the legislature's own express definition of
"culpable mental state," which is limited to four
mental states-"intentionally," "knowingly," "recklessly," and
"criminal negligence"-none of which is
"purposely" or "for the purpose of." Id. at ¶ 23,
¶26
Third, the Randolph division disagreed with equating
the most culpable mental state in the MPC (purposely) with
the most culpable mental state in Colorado's Criminal
Code (intentionally) because purposely is defined by the MPC
so as to include the nature of the conduct, the attendant
circumstances, and the result, while intentionally is defined
in our Criminal Code only in terms of a result. Randolph, ¶¶ 24-26,
¶28
Lastly, the Randolph division observed that, when
interpreting other statutes lacking an express designation of
the mens rea, this state's appellate courts have
generally imputed knowingly "in the absence of a clear
reason" to impute "a more stringent mental
state." ¶ 30,
¶29 With that background in mind, we are at the moment of truth. Who got it right: Emerterio or Ross I? We conclude that Emerterio did and thus overrule Ross I and affirm the division below. As we explain next, our legislature meant for the culpable mental state of knowingly, which is expressly designated in subsection (1)(c), to apply in subsections (1)(a) and (1)(b).
¶30 We start at the beginning. In decrypting our legislature's pertinent intent, our first order of business is to review some foundational tenets vis-a-vis criminal culpability.
¶31 "The minimum requirement for criminal liability is the
performance by a person of conduct which includes a voluntary
act or the omission to perform an act which he is physically
capable of performing." § 18-1-502, C.R.S. (2024). If such conduct is all that the commission of an offense
requires, then "the offense is one of 'strict
liability.'" Id. The vast majority of
offenses, however, are not strict liability
offenses; rather, a defendant must typically act with a
culpable mental state to be criminally liable. See Gorman,
¶33 Neither subsection (1)(a) nor subsection (1)(b) includes any of the four terms our legislature has selected to ordinarily define culpable mental states in Colorado. And, correspondingly, neither section 18-1-501(4) nor section 18-1-503(1) identifies "for the purpose of" as a culpable mental state.
¶34 Randolph insists, however, that subsections (1)(a) and (1)(b) do expressly designate a culpable mental state. Taking a page from comment 3, he hitches his wagon to the phrase "for the purpose of" and maintains that it is, itself, a culpable mental state.[9] And, borrowing from a court of appeals opinion affirming an administrative law judge's plain-meaning interpretation of "for the purpose of" in a civil statute, Randolph maintains that the phrase "indicates an anticipated result that is intended or desired." Colo. Ethics Watch, 203 P.3d at 625 (emphasis added).[10]
¶35 We reject Randolph's contention. Had the legislature meant to designate "for the purpose of" as the applicable culpable mental state in subsections (1)(a) and (1)(b), it presumably would have done so either by identifying the phrase as a "culpable mental state" in sections 18-1-501(4) and 18-1-503(1) or by otherwise making its intent known in section 18-7-402(1). It did neither.
¶36 "Words and phrases," such as culpable mental state,
"that have acquired a technical or particular meaning .
. . by legislative definition . . . shall be
construed accordingly." § 2-4-101, C.R.S. (2024) (emphasis added). Adhering to this precept, a conviction of
any crime, other than a strict liability crime, generally
requires proof that the defendant acted with one of the four
culpable mental states
ordinarily designated by our legislature. People v.
Hall,
¶37 We impliedly recognized in Ross II that the
legislature did not sanction "for the purpose of"
in subsections (1)(a) and (1)(b) as a culpable mental state. While Ross II shelved the question we meet head-on
today, it made clear that the culpable mental state of
soliciting for child prostitution under subsections (1)(a)
and (1)(b) must apply to every element of the crime,
including the element of "for the purpose of
prostitution of a child or by a child." Ross
II, ¶ 4,
¶38
Significantly, when our General Assembly overhauled the
Colorado Criminal Code in 1971, one of its goals was to
eliminate the confusion stemming from the wide array of
ambiguous terms defining the culpable mental state
requirements for criminal offenses. People v. Vigil,
A person acts "intentionally" or "with intent" when his conscious objective is to cause the specific result proscribed by the statute defining the offense....
A person acts "knowingly" or "willfully" with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. A person acts "knowingly" or "willfully," with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result.
§ 18-1-501(5)-(6) (emphases added). And the legislature declared that all offenses with a culpable mental state of intentionally would be specific intent crimes, while all offenses with a culpable mental state of knowingly would be general intent crimes. Id.
¶39
In revamping our Criminal Code, the legislature drew heavily
from the MPC, which made its own substantial modifications
surrounding the culpable mental state requirements for
criminal offenses. See Vigil,
¶40 But not only did our General Assembly deviate from the MPC by using intentionally instead of purposely as the most culpable mental state, it ultimately defined the former more narrowly than the MPC defined the latter. Our General Assembly defined intentionally only in terms of a required result; the MPC, by contrast, defined purposely in terms of conduct, attendant circumstances, and/or a required result:
A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
Model Penal Code § 2.02(2)(a), at 225 (emphases added).
¶41 Hence, the MPC's purposely is by no means an analogue of our Criminal Code's intentionally. Rather, the MPC's most culpable mental state appears to be a hybrid of our Criminal Code's intentionally and knowingly.
¶42
The Ross I division was therefore wrong to consider
the MPC's purposely and our Criminal Code's
intentionally as fungible. And, relatedly, it was a leap too
far for that division to suggest that the General Assembly
expressly designated the culpable mental state of
intentionally through the phrase "for the purpose
of" in subsections (1)(a) and (1)(b). Ross I,
¶¶ 8, 30,
¶43
Our decision in Vigil supports our conclusion that,
absent evidence of a contrary legislative intent, "for
the purpose of" doesn't reflect our
legislature's designation of the culpable mental state of
intentionally. The crime charged there, sexual assault on a
child, was defined by two statutory provisions, section
18-3-405(1), C.R.S. (2024), and section 18-3-401(4), C.R.S.
(2024). The ambiguity arose from the use of
"knowingly" in the former and "knowing"
and "for the purposes of" in the latter. Vigil,
¶44 Here, while subsections (1)(a) and (1)(b) do not refer to knowingly or knowing, they do omit intentionally. Further, not only is there a dearth of evidence that the legislature meant the phrase "for the purpose of" in those subsections to designate the culpable mental state of intentionally, there is actually evidence proving just the opposite. Were we to construe "for the purpose of" in subsections (1)(a) and (1)(b) to mean intentionally, as Ross I did and as Randolph intimates, it would render subsection (1)(c) nonsensical. Subsection (1)(c) makes it a crime to "[d]irect[] another to a place knowing such direction is for the purpose of prostitution of a child or by a child." § 18-7-402(1)(c) (emphases added). To consider "for the purpose of" in this subsection as the culpable mental state of intentionally would thus require proof that an offender directed another to a place knowing that the intent in providing that direction was prostitution of or by a child. That would be illogical. Because subsection (1)(c) explicitly requires the culpable mental state of knowingly, the phrase "for the purpose of" in that subsection cannot be equated with the culpable mental state of intentionally.
¶45 We may not give the phrase "for the purpose of" one
meaning in subsection (1)(c) and a different meaning in
subsections (1)(a) and (1)(b) without clear evidence that
this is what the legislature had in mind. "Where the
legislature has used the 'same words or phrases in
different parts of a statute,' we ascribe a consistent
meaning to those words unless there is a 'manifest
indication to the contrary.'" Przekurat ex rel.
Przekurat v. Torres,
¶46 We now conclude that subsections (1)(a) and (1)(b) are simply mum on a culpable mental state.[11] That both subsections use "for the purpose of" doesn't alter this determination because there is no basis to believe that the legislature meant to use the phrase to commission a new culpable mental state. And, contrary to the division's holding in Ross I and Randolph's suggestion, there is also no basis to believe that the legislature meant to designate the culpable mental state of intentionally through that phrase.[12]
¶47
Legislative silence on a culpable mental state "is
generally not construed as an indication that no culpable
mental state is required." People v. Naranjo,
¶48
The question, then, is whether the conduct proscribed by
subsections (1)(a) and (1)(b) necessarily involves a culpable
mental state. We answered this question with a resounding yes
in Ross II. See ¶ 19,
¶49 We reiterate what we said four years ago there: Any assertion
that soliciting for child prostitution under either
subsection (1)(a) or subsection (1)(b) is a strict liability
crime doesn't hold water. Id. at ¶ 24, 479
P.3d at 915. Further, we continue to be unaware of any basis
to infer a culpable mental state of recklessly or criminal
negligence from subsections (1)(a) and (1)(b). Id. (narrowing the applicable culpable mental state in
subsections (1)(a) and (1)(b) to two choices, intentionally
or knowingly). Nothing in the language of those subsections
is logically tied to recklessness or criminal negligence. See Lawrence,
¶50
Our North Star at this juncture of the analysis remains the
legislature's intent. Turning first to the plain language
of section 18-7-402(1), the prohibited conduct is soliciting
another, arranging (or offering to arrange) a meeting with
others, or directing another. § 18-7-402(1)(a)-(c); Emerterio,
¶51
Of particular relevance here, however, there is no
requirement in section 18-7-402(1) that the offender's
conduct have a particular effect or cause a particular
result. The crux of the crime is not the ultimate sexual act,
which may or may not occur, but the solicitation, meeting
arrangement, offer to arrange a meeting, or direction to a
place, accompanied by the purpose behind such conduct. Ross II, ¶ 32,
¶52
This conclusion is buoyed by our jurisprudence on the crime
of soliciting for prostitution, section 18-7-202(1), C.R.S.
(2024) (as distinguished from the crime of soliciting for
prostitution of or by a child, section 18-7-402(1)). In People v. Mason,
¶53 Given our legislature's decision to describe the crime of soliciting for child prostitution without requiring a result, we conclude that the culpable mental state of knowingly fits subsections (1)(a) and (1)(b) like a glove. Knowingly is a broad concept that may attach to conduct "when [a person] is aware that his conduct is of such nature"; to an attendant circumstance, "when [a person] is aware . . . that such circumstance exists"; and/or to a result, "when [a person] is aware that his conduct is practically certain to cause the result." § 18-1-501(6). By way of example, knowingly may apply to: the physical act of assaulting another ("conduct"); the false status of a statement or the stolen nature of property (an attendant "circumstance"); and the death or serious bodily injury caused or inflicted (a "result"). People v. Derrera, 667 P.2d 1363, 1367 (Colo. 1983).
¶54
In stark contrast to the culpable mental state of knowingly,
the culpable mental state of intentionally fits like a square
peg in a round hole in subsections (1)(a) and (1)(b). We
reiterate that intentionally is defined solely in
terms of a required result: The "conscious
objective" of the accused must have been to bring about
the specific result prohibited by the statute defining the
offense.[13] § 18-1-501(5); see also People
v. Krovarz,
¶55
Because subsections (1)(a) and (1)(b) define soliciting for
child prostitution in terms of conduct and an attendant
circumstance without requiring that the prohibited act have a
particular effect or cause a particular result, applying the
culpable mental state of intentionally in those subsections,
as Ross I did and as
Randolph impliedly prompts us to do, is ill-suited at best. As we explained in Krovarz, attaching intent
"to either conduct or circumstances" in a statute
is "superfluous."
¶56 Our reasoning in this case may be expressed as follows:
• Subsections (1)(a) and (1)(b) proscribe certain conduct when it is accompanied by a particular attendant circumstance, but they do not require a result.
• The culpable mental state of knowingly is defined in terms of conduct, and/or the attendant circumstances, and/or the result of the offense.
• The culpable mental state of intentionally is defined only in terms of the result of the offense.
• Therefore, knowingly is, hands-down, the culpable mental state that best fits in subsections (1)(a) and (1)(b).
¶57
In any event, in the past, the court of appeals and our court
alike have generally imputed the culpable mental state of
knowingly when non-strict-liability statutory provisions are
silent on a culpable mental state and there is no clear
reason to resort to a different culpable mental state. See Gorman,
¶58
But what about where, as here, such statutory provisions
include the phrase "for the purpose of"? This is
not our first rodeo at attempting to decipher the
legislature's intent in that scenario either. Our
decision in Candelaria v. People,
¶59
There, we were called upon to interpret "for the purpose
of" in section 18-3-414.5(1)(a)(III), C.R.S. (2024),
which is part of the definition of sexually violent predator
("SVP"). The pertinent statutory provision in
Candelaria defined SVP in part as an offender
"[w]hose victim was . . . a person with whom the
offender established or promoted a relationship primarily
for the purpose of sexual victimization." § 18-3-414.5(1)(a)(III) (emphasis added). We noted that
a division of the court of appeals had previously determined
that this clause "obligate[d] the trial court to find
that an offender 'had a specific intent in
forming the relationship' with the victim for the
purposes of sexual victimization." Candelaria,
¶ 13,
¶60 We rejected Stead's construction for several
reasons, including that "the plain language of the
[statute] . . . does not contain a specific intent
requirement." Id. at ¶ 14,
¶61 It is no different here. Without the express designation of the culpable mental state of intentionally in subsections (1)(a) and (1)(b) or any indication that our General Assembly meant those subsections to describe specific intent crimes, we are unwilling to engage in judicial legislation and impute the culpable mental state of intentionally.
¶62 We acknowledge that we have said in the past that purpose is synonymous with intent. See People v. Frysig, 628 P.2d 1004, 1010 (Colo. 1981). But when we have done so, we have meant the common meaning of intent, as distinguished from the legal meaning of specific intent. Id. (stating that "'purpose' as used in the criminal attempt statute is the equivalent of the common meaning of the word 'intent'"). In Frysig, we made note of the legislature's decision in 1977 to revise the definition of "substantial step" in the criminal attempt statute by replacing "'intent' . . . [with] 'purpose,' a word of like purport but without the specific intent definitional consequences which section 18-1-501 . . . attaches to the term 'with intent.'" Id. at 1009. Put differently, we equated purpose with the common meaning of intent. Id.
¶63
Similarly, in Childress, we analogized purpose with
"intent, in the commonly understood sense." ¶
29,
¶64 Consistent with our case law, today we infer that the culpable mental state of knowingly applies in subsections (1)(a) and (1)(b). We conclude that, although these subsections do not expressly include a culpable mental state, the culpable mental state of knowingly must nevertheless be imputed.[14]
¶65
In sum, to be guilty of soliciting for child prostitution, an
offender must act knowingly-i.e., be "aware of what he
is doing"-in soliciting another for the purpose of
prostitution of or by a child, arranging (or offering to
arrange) a meeting with others for the purpose of
prostitution of or by a child, or directing another to a
place for the purpose of prostitution of or by a child. Emerterio,
¶66 Randolph contends that the district court erred by instructing the jury that the crime of soliciting for child prostitution, as charged here, required proof that he knowingly, rather than intentionally, solicited or arranged (or offered to arrange) a meeting for the purpose of prostitution of or by a child. Because we have now held that the mens rea for the crime of soliciting for child prostitution under subsections (1)(a) and (1)(b) is knowingly, we see no error in the challenged jury instructions.
¶67 For the foregoing reasons, we conclude that the applicable culpable mental state in subsections (1)(a) and (1)(b) is knowingly. Because the division below reached the same determination, we affirm its judgment.
---------
[1] In the interest of brevity, throughout this opinion, we generally refer to "intentionally" and "knowingly" as shorthand for the culpable mental states defined in section 18-1-501(5)-(6), C.R.S. (2024) (listing "'[i]ntentionally' or 'with intent'" and "'[k]nowingly' or 'willfully,'" respectively).
[2] Subsection (1)(c) proscribes "[d]irect[ing] another to a place knowing such direction is for the purpose of" prostitution of or by a child. The prosecution didn't charge Randolph pursuant to this subsection.
[3] See § 18-7-402(1)(a).
[4] See § 18-7-402(1)(b).
[5] We agreed to review the following question:
Whether the trial court reversibly erred in instructing the jury that "knowingly" was the culpable mental state for soliciting child prostitution.
[6] Ross I was not yet on the books when the district court rejected Randolph's tendered jury instruction.
[7] Recently, a different division of the
court of appeals followed Randolph's lead with
no analysis and held that knowingly, not intentionally, is
the applicable culpable mental state of soliciting for child
prostitution under subsection (1)(a). People v.
Dominguez,
[8] The legislature has indicated that the culpable mental state of a particular offense may also be designated by the phrases "with intent to defraud" or "knowing it to be false." § 18-1-503(1) (emphases added). These are not additional culpable mental states. Rather, they merely require "a specific kind of intent" or a "specific kind of . . . knowledge." Id. (emphases added). In other words, these phrases reflect the culpable mental states of intentionally and knowingly, respectively, in a more restrictive form. There is no support for Randolph's assertion that the legislature meant "for the purpose of" to be considered "a specific kind of intent." And without such support, we decline his invitation to embrace this interpretation.
[9] This is a slightly different tack from the one Randolph took before the division. There, he argued that "for the purpose of" refers to the culpable mental state of "intentionally," not that it constitutes its own culpable mental state.
[10] The definition Randolph plucks out of Colorado Ethics Watch imitates the definition of the culpable mental state of intentionally. See § 18-1-501(5) ("A person acts 'intentionally' . . . when his conscious objective is to cause the specific result proscribed by the statute defining the offense.").
[11] It is not lost on us that our endorsement of the holding in Ross I (that "for the purpose of" means intentionally) or our acceptance of Randolph's position (that "for the purpose of" is a new culpable mental state resembling intentionally) would risk troublesome repercussions by potentially transforming "for the purpose of" in myriad criminal statutory provisions into either a fifth culpable mental state or the culpable mental state of intentionally.
[12] We stop short of categorically
stating that the phrase "for the purpose of" in a
statute can never be deemed either its own culpable mental
state or the culpable mental state of intentionally. We find
it wise to heed the "old saw . . . that lawyers and
judges 'never say never.'" United States v.
Flores,
[13] Under the definition of intentionally, whether the result actually occurs is immaterial. See § 18-1-501(5). But for this culpable mental state to apply, a crime must be described in terms of a required result. Id.
[14] That the legislature expressly designated the culpable mental state of knowingly in subsection (1)(c)-and only in subsection (1)(c)-does not compel the conclusion that it meant to apply a different culpable mental state in subsections (1)(a) and (1)(b). Indeed, Randolph does not argue otherwise. The use of "knowing" in subsection (1)(c) as a qualifier for the "direction" to a place was necessary to clarify that what the prosecution must prove is that the offender knew the direction to the place was for the purpose of prostitution of or by a child. § 18-7-402(1)(c) ("Directs another to a place knowing such direction is for the purpose of prostitution of a child or by a child" (emphasis added)). Had the legislature not included "knowing such direction is" before "for the purpose of," it would have proscribed simply "[d]irect[ing] another to a place for the purpose of prostitution of a child or by a child," which could have been understood as requiring proof that the offender was aware that the place itself existed for the purpose of prostitution of or by a child. Regardless, for the reasons we have articulated, knowingly is the only culpable mental state that we can reasonably infer from subsections (1)(a) and (1)(b).
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